Chapter Sixteen

1
Chapter Sixteen

• The Judiciary

2
Power of the Federal Courts

• Hardly any American really cares or knows about
  the court system.
• However, Congress cares A LOT!
• Federal courts, even at the lowest level, make
  decisions that affect everyone.
• As the power of the federal govt has grown, so
  has the power of the federal courts.
• Only in the US do judges play so large a role in
  making public policy.

3
Judicial Review

• Judicial review the right of the federal courts
  to rule on the constitutionality of laws and
  executive actions
• It is the chief judicial weapon in the checks and
  balances system

4
Constitutional Interpretation

• Judicial Restraint judges are bound by the
  wording of the Constitution also known as strict
  constructionist
• Judicial Activism judges should look to the
  underlying principles of the Constitution also
  known as loose constructionist
• Today, most strict constructionists tend to be
  conservative, most activists tend to be liberal

5
Development of the Federal Courts

• Most Founders probably expected judicial review,
  but did not expect the federal courts to play
  such a large role in policy-making
• But the federal judiciary evolved toward judicial
  activism, shaped by political, economic, and
  ideological forces
• See Hamiltons view on p.434

6
National Supremacy

• Marbury v. Madison (1803) The Supreme Court
  could declare a congressional act
  unconstitutional judicial review!
• McCulloch v. Maryland (1819) The power granted
  to federal government should be construed
  broadly, and federal law is supreme over state
  law necessary and proper clause and supremacy
  clause!

7
1865 to 1936 (See pgs.435-436)

• The Supreme Court was supportive of private
  property, but could not develop a principle
  distinguishing between reasonable and
  unreasonable regulation of business
• The Court interpreted the Fourteenth and
  Fifteenth amendments narrowly as applied to
  blacksit upheld segregation, excluded blacks
  from voting in many states

8
1936 to Present (See pgs.437-440)

• The Court establishes tradition of deferring to
  the legislature in economic regulation cases
• FDRs Court-packing bill would have allowed him
  to appoint one new justice for each one over 70
  who refused to retire this would increase the
  to 15.
• The Warren Court provided a liberal protection of
  rights and liberties against government trespass

9
Structure of Federal Courts

• The only federal court that the Constitution
  requires is the Supreme Court, found in Article
  III.
• S.C. is court of last resort in all questions of
  federal law.
• Most cases are appeals from lower courts
  decisions are binding.

10
Structure of Federal Courts

• Original 2 types of cases 1. cases involving
  representatives of foreign govts 2. cases in
  which a state is a party (small of cases)
• Appellate hears cases appealed from lower
  courts of appeals, federal district courts, or
  highest court of a state, BUT may only rule on
  the federal issue involved, not the state issue.

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Structure of Federal Courts

• Congress created two lower federal courts to
  handle cases that need not be decided by the
  Supreme Court
• Constitutional court set up by the Constitution
• district courts total of 94, each state has at
  least 1 they are the trial courts for civil and
  criminal federal cases.
• federal courts of appeals total of 13, divided
  into 12 judicial circuits this is usually the
  final decision, unless sent to the Supreme Court.
  
• Legislative court set up by Congress for a
  specialized purpose examples include the Court
  of Military Appeals, Territorial courts, US Tax
  Court, US Court of Federal Claims, etc.

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Map 16.1 U.S. District and Appellate Courts
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Selecting Judges

• Party background has a strong effect on judicial
  behavior
• Appointees for federal courts are reviewed by
  senators from that state, if the senators are of
  the presidents party (particularly for U.S.
  district courts)
• Senatorial courtesy (See p.441)

14
Selecting Judges

• Presidents seek judicial appointees who share
  their political ideologies
• This raises concerns that ideological tests are
  too dominant, and has caused delays in securing
  Senate confirmations
• Litmus test (test of judges political
  ideology) is especially important in Supreme
  Court selection (See p.441-442)

15
Figure 16.1 Female and Minority Judicial
Appointments, 1963-2003
Source Updated from Harold W. Stanley and
Richard G. Niemi, Vital Statistics on American
Politics, 20052006 (Washington, D.C.
Congressional Quarterly, 2006), table 7.5.
16
Figure 16.1 Female and Minority Judicial
Appointments, 1963-2003
Source Updated from Harold W. Stanley and
Richard G. Niemi, Vital Statistics on American
Politics, 20052006 (Washington, D.C.
Congressional Quarterly, 2006), table 7.5.
17
Figure 16.1 Female and Minority Judicial
Appointments, 1963-2003
Source Updated from Harold W. Stanley and
Richard G. Niemi, Vital Statistics on American
Politics, 20052006 (Washington, D.C.
Congressional Quarterly, 2006), table 7.5.
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Federal Cases

• Federal question cases involving the U.S.
  Constitution, federal law, or treaties
• Diversity cases involving different states, or
  citizens of different states
• Some kinds of cases can be heard in either
  federal or state courts.
• See examples p.444
• See Figure 16.3 on p.445

19
Federal Cases

• Some cases that begin in state courts can be
  appealed to the Supreme Court
• Controversies between two state governments can
  only be heard by the Supreme Court

20
Writs of Certiorari

• Order by a higher court directing the lower court
  to send up a case for review
• Requires agreement of four justices to hear the
  case
• Involves significant federal or constitutional
  question
• Involves conflicting decisions by circuit courts
• Involves Constitutional interpretation by one of
  the highest state courts
• The Court may consider over 7,000 petitions every
  year, but will only accept about 100 for full
  review

21
Getting to Court

• The courts are the great equalizer in the federal
  govt
• However, it is very hard to get before the
  SC-they reject 96 of applications for cert,
  costs are very high, and length deters many
• About ½ of arriving petitions are in forma
  pauperis cases-poor person can have case heard
  w/o charge

22
Standing to Sue

• There must be a real controversy between
  adversaries
• Personal harm must be demonstrated
• Being a taxpayer does not ordinarily constitute
  entitlement to challenge federal government
  action this requirement is relaxed when the
  First Amendment is involved
• See examples on pgs.447-448

23
Class-Action Suits

• Under certain circumstances a citizen may benefit
  from a court decision, even though they have
  never gone to court
• One of the most famous class-action suits was the
  1954 Brown v. BOE case
• The Courts decision did not only give Brown the
  right to attend a segregated school, it covered
  all others similarly situated
• Thousands of these cases are presented to federal
  courts every year involving civil rights, rights
  of prisoners, suits against corporations, etc.
• See examples on pgs.448-449

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The Supreme Court in Action

• Most cases arrive through a writ of certiorari
• Lawyers then submit briefs that set forth the
  facts of the case, summarizes the lower court
  decision, gives the argument of that side of the
  case, and discusses other issues
• Amicus curiae brief see p.450
• Oral arguments are given by lawyers after briefs
  are submitted
• SC Justices confer w/ one another and question
  the lawyer then convene to debate (in secret)
  about the brief
• Each judge has a chance to speak and vote

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Kinds of Court Opinions

• Per curiam brief and unsigned opinion
• Opinion of the court majority opinion
• Concurring opinion agrees with the ruling of the
  majority opinion, but modifies the supportive
  reasoning
• Dissenting opinion minority opinion

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Power to Make Policy

• The Courts make policy whenever they reinterpret
  the law or Constitution in significant ways,
  extend the reach of laws to cover new matters, or
  design remedies for problems.
• Power to declare laws unconstitutional
• Stare decisis- let the decision stand
  principle of precedent applied to current
  situation

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Arguments for Judicial Activism

• Courts should correct injustices when other
  branches or state governments refuse to do so
• Courts are the last resort for those without the
  power or influence to gain new laws

28
Arguments Against Judicial Activism

• Judges lack expertise in designing and managing
  complex institutions like school administration,
  prison management, environmental protection, etc.
• Initiatives require balancing policy priorities
  and allocating public revenues
• Courts are not accountable because judges are not
  elected

29
Checks on Judicial Power

• Judges have no enforcement mechanisms
• Confirmation and impeachment proceedings
• Changing the number of judges
• Revising legislation
• Amending the Constitution
• Altering jurisdiction
• Restricting remedies

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Public Opinion and the Courts

• Defying public opinion frontally may be dangerous
  to the legitimacy of the Supreme Court,
  especially elite opinion
• Opinion in realigning eras may energize court
• Public confidence in the Supreme Court since 1966
  has varied with popular support for the
  government generally
• See pgs.456-457

31
Justice AppointedIn Appointed By At Age
John G. Roberts(Chief Justice) 2005 G. W. Bush 50
Elena Kagan 2010 Obama 50
Samuel A. Alito, Jr. 2006 G. W. Bush 55
Antonin Scalia 1986 Reagan 50
Anthony Kennedy 1988 Reagan 52
Sonia Sotomayor 2009 Obama 55
Clarence Thomas 1991 Bush 43
Ruth Bader Ginsburg 1993 Clinton 60
Stephen Breyer 1994 Clinton 56
Current (2010) salary for the Chief Justice is
223,500 per year, while the Associate Justices
each make 213,900.
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Antonin Scalia
Chief Justice John Roberts
Anthony Kennedy
Elena Kagan
Elena Kagan
Clarence Thomas
Clarence Thomas
Samuel Alito
Sonia Sotomayor
Ruth Bader Ginsburg
Stephen Breyer
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The Roberts Court, 2010Back row (left to right)
Sonia Sotomayor, Stephen G. Breyer, Samuel A.
Alito, and Elena Kagan. Front row (left to
right) Clarence Thomas, Antonin Scalia, Chief
Justice John G. Roberts, Anthony Kennedy, and
Ruth Bader Ginsburg